erred in precluding them from attacking Agent De La Cova's credibility. The Court denied this motion, finding that "defense counsel's extensive cross-examination of Special Agent Rene De La Cova provided the jury with ample opportunity to assess the witness's credibility. Moreover, unconfirmed allegations of sexual misconduct and the facts concerning the prior case in Virginia were of 'marginal relevance' and were clearly prejudicial." See Order dated Sept. 20, 1993. As defendants have set forth no basis for the Court to revisit its prior rulings, their motion based on Agent De La Cova's prior misconduct is untimely.
IV. Agent De La Cova's Conviction and Agent Matos' Misconduct
Defendants next argue that a judgment of acquittal or new trial is mandated by (1) Agent De La Cova's January 1994 conviction for the theft of government property; and (2) Agent Matos' placement on limited duty in May 1994 as a result of his relationship with a known cocaine trafficker. Specifically, defendants argue that a new trial is necessary to allow them the opportunity to impeach the agents' credibility with this newly discovered evidence. The Court disagrees.
First, the Court notes that evidence of the agents' misconduct would be inadmissible at a new trial because the conduct occurred subsequent to defendants' convictions and consisted of acts that were unrelated to the undercover investigation. Specifically, Agent De La Cova embezzled $ 700,000 in government funds on July 17, 1993, more than nine months after the defendants were convicted in the present action. Similarly, Agent Matos was placed on limited duty for sexual misconduct that occurred in May 1993, approximately seven months after the defendants' conviction. If the Court were to allow cross-examination into this post-trial conduct, it would open the door to new trial motions whenever a government witness committed a bad act or was convicted of criminal conduct occurring subsequent to trial, no matter how remote in time, place and subject matter to the original action. Accordingly, the Court finds that these incidents are irrelevant to the case at bar.
Second, even if Agent Matos' misconduct occurred prior to the defendants' conviction, Federal Rule of Evidence 608(b) would preclude the defendants from introducing extrinsic evidence of this misconduct at a new trial. See Fed. R. Evid. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, . . . may not be proved by extrinsic evidence."). Moreover, as Agent Matos' misconduct is not probative of truthfulness or untruthfulness, the defendants would be precluded even from inquiring into the incident on cross-examination. See id.
Third, even if evidence of the agents' misconduct were admissible to impeach their credibility on cross-examination, the Court holds that a new trial is not warranted in this case. It is well settled that new evidence that merely discredits a government witness, but does not contradict the prosecution's case, does not mandate a new trial. See United States v. Sposato, 446 F.2d at 781. In the case at hand, the new evidence would only be used to impeach the agents' credibility in general, and could not be used to impeach their credibility as to any specific statement or issue of fact. Thus, the defendants offer no evidence to contradict the agents' version of the facts in this case.
Moreover, the agents' testimony was extensively corroborated by other evidence at trial. Specifically, the Government introduced evidence of an intercepted telephone conversation in which an individual named "El Negro," at beeper number (212) 458-0453, was identified as a customer of a portion of the cocaine that was transferred from Panama. The Government also introduced telephone records that documented a call from Lopez's residence to the restaurant from which Agent De La Cova beeped "El Negro." In addition, Russell Benson, a special agent with the DEA, testified about his surveillance of the January 10th transaction. The Government also introduced a beeper taken from Lopez when he was arrested, upon which was typed the same telephone number that Agent De La Cova had paged earlier that evening. The evidence at trial further established that Ivan was carrying a piece of paper at the time of his arrest upon which was written the numbers "458-0453" and the word "Guillo." Finally, the Government introduced Ivan's post-arrest statement in which he indicated that he knew that "someone" was at the January 10th transaction to participate in a drug deal. In view of this overwhelming evidence of the defendants' guilt,
the Court concludes that cross-examination concerning the agents' post-trial acts of misconduct probably would not lead to an acquittal. United States v. Spencer, 4 F.3d at 119 (stating that newly discovered evidence does not mandate a new trial unless the evidence "probably" would lead to an acquittal). Accordingly, defendants' motion for a judgment of acquittal or new trial based on these acts is denied.
V. Allegations of Government Misconduct During the Undercover Investigation
Defendants next argue that a judgment of acquittal or new trial is mandated by newly discovered evidence of agent misconduct during the undercover investigation. Specifically, defendants make the following four allegations of agent misconduct: (1) Agents De La Cova and Matos failed to report that Restrepo and Sucic had given a quantity of jewelry and money to confidential informants during the course of the undercover investigation; (2) Agents De La Cova and Matos, possibly assisted by other DEA agents, imported 150 kilograms of cocaine from Panama which they then distributed for their own profit; (3) Agent Matos received $ 300,000 in cash from Vicky which he converted to his own use; and (4) Agents De La Cova and Matos stole $ 3,000 in cash recovered from Montoya during an undercover drug deal. For the reasons set forth below, the Court finds that none of these allegations warrant either a judgment of acquittal or a new trial.
A. Receipt of Jewelry and Money by the CIs
Defendants first contend that Agents De La Cova and Matos failed to report that Restrepo and Sucic had given a quantity of jewelry and cash to the First CI during the course of the undercover investigation. The Government concedes that the First CI apparently received "an unknown quantity" of jewelry from Restrepo and Sucic, but indicates that the First CI was supposed to pay Restrepo for the jewelry and that the jewelry transaction was unrelated to the undercover investigation. See letter from Assistant United States Attorney Bruce Ohr to the Hon. Shirley Wohl Kram of 2/27/95, at 9. The Government indicates further that "Restrepo may have made an additional payment of $ 10,000 to the informant, but the evidence of that payment is inconclusive." Id. Finally, the Government concludes that "while it is not possible to say for certain how much money the second confidential informant received from Restrepo [on the night of January 8, 1991], it seems highly unlikely that Agent Matos or any other agent would have had the opportunity to remove cash after the informant brought the cash to the DEA." Id. at 9 n.2.
Assuming that Restrepo and Sucic gave a quantity of jewelry and cash to the CIs during the course of the undercover investigation,
the Court finds that this evidence does not mandate either a judgment of acquittal or a new trial. First, the Court notes that Restrepo and Sucic were not charged under the same indictment as the defendants and did not proceed to trial in this action. In fact, the undercover investigation involving Restrepo and Sucic did not relate in any way to the investigation of Lopez and the Buitragos. Moreover, neither of the CIs involved in the investigation of Restrepo and Sucic spoke to the defendants or testified at the trial in this action. Accordingly, the CIs' misconduct would not be admissible during a new trial in the present case.
Second, while Agents De La Cova and Matos testified against the defendants at trial, any misconduct on their part involving the Restrepo and Sucic investigation would not be grounds for cross-examination in a new trial. Specifically, while it appears that Agent De La Cova failed to supervise the CIs properly, his negligence would not be proper grounds for attacking his credibility at trial because it does not call into question his character for truthfulness. See Fed. R. Evid. 608(b). Moreover, with respect to Agent Matos, defendants have provided the Court with no evidence that Agent Matos received money from the Second CI, or converted such money for his personal use. Accordingly, the Court finds that defendants' allegations with respect to the CIs' receipt of jewelry and money during the Restrepo and Sucic investigation does not merit a judgment of acquittal or a new trial.
B. Importation of 150 Kilograms of Cocaine
Defendants also allege that Agents De La Cova and Matos imported 150 kilograms of cocaine during the undercover investigation and distributed them for their personal profit. In support of this contention, defendants argue that Arias can be heard in the background of intercepted telephone conversations #622, recorded at 7:10 p.m. on January 8, 1991, telling an unidentified male that he had counted more than 400 kilograms of cocaine in New York. Defendants fail to quote the exact language used by Arias, however, and, having listened to conversation # 622, the Court cannot discern any statement by Arias indicating that he counted 400 kilograms of cocaine in New York.
Defendants contend further that the presence of 150 kilograms of cocaine in New York is also proven by the fact that DEA photographs of the cocaine display narcotics contained in white packaging. According to the Government, however, these photographs depict a portion of the 307 kilograms transported from Panama during the undercover investigation, which were packaged in white wrapping. In light of the Government's well-documented evidence concerning the importation of 307 kilograms of cocaine and the transfer of 150 kilograms to the Panamanian police, the Court concludes that defendants' allegation that Agents De La Cova and Matos distributed 150 kilograms of cocaine for their own profit lacks merit.
C. Theft of $ 300,000 from Vicky
Defendants next contend that Agent Matos failed to report that Vicky had given him $ 300,000 in payment for cocaine delivered during an undercover transaction on January 9, 1991. Specifically, defendants point to an intercepted telephone conversation during which Rodriguez-Orejuela instructed Arias to give Vicky twenty-five kilograms of cocaine, wait to be paid, and then give her another twenty-five kilograms. According to defendants, this telephone conversation establishes that Arias was to give Vicky the cocaine only if she paid for it in advance. Defendants also point to conversation # 676 during which Arias informed Rodriguez-Orejuela that he had not received any money yet from Vicky, but that he planned to meet with her later that day to acquire the money. According to defendants, conversation # 676 demonstrates that Arias planned to meet with Vicky to exchange the drugs for the money. Defendants further contend that DEA agents permitted Vicky and Arias to avoid arrest because they would have confirmed that Vicky had transferred $ 300,000 to Agent Matos.
As the Government has established, however, the January 9, 1991 meeting during which Arias and Agent Matos transferred the cocaine to Vicky occurred at approximately 10:10 a.m., prior to the telephone call during which Arias told Rodriguez-Orejuela that he had not yet received the money from Vicky. Moreover, defendants have provided the Court with no evidence that Agent Matos permitted Vicky and Arias to escape arrest because they might have revealed the $ 300,000 theft. In fact, DEA agents attempted to locate and arrest Arias by maintaining surveillance at his last known residence and by attempting to trace certain telephone calls suspected of emanating from him. Under these circumstances, the Court concludes that there is no evidence to support defendants' allegation that Vicky transferred $ 300,000 to Agent Matos.
D. Theft of $ 3,000 from Montoya
Finally, defendants allege that Agents De La Cova and Matos stole $ 3,000 from the cash obtained from Montoya during the undercover drug transaction on January 9, 1991. Specifically, Lopez contends that Montoya had brought $ 50,000 in cash to the meeting, but that Agents De La Cova and Matos had turned in only $ 47,000. When OPR agents interviewed Montoya, however, he conceded that he had never counted the money that he had brought with him to the drug transaction. Accordingly, the Court finds that there is no evidence that the agents stole any of the money contained in Montoya's vehicle on January 9, 1991.
Accordingly, the Court finds that defendants' allegations of misconduct warrant neither a new trial nor a judgment of acquittal.
For the reasons set forth above, defendants' motion for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, or a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, is denied. Defendant Lopez is directed to appear for sentencing on Wednesday, July 12, 1995 at 10:30 a.m. Defendant Jairo Alvarez-Buitrago shall appear for sentencing on Wednesday, July 19, 1995 at 10:30 a.m. Finally, defendant Ivan Alvarez-Buitrago will be sentenced on Wednesday, July 26, 1995, at 10:30 a.m.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
June 21, 1995